WHEN WE LOOK at criminal justice as a process rather than
as a set of rules associating certain punishments with
certain crimes, the concept of rigorously mandatory
linkage between act and punishment fades out. It begins
to fade when we consider the process of charging. How
and by whom is it decided what crime to charge, after the
raw factual picture-or, more accurately, the raw
evidence, in hand and anticipated-is digested in part and
in part forecasted?

The rough answer (not subject to sufficient
qualification to make analysis of the qualifications here
worthwhile) is that the prosecutor makes this decision,
and that his decision is within large limits "discretion‐

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